UK Bribery Act

• Author: Stuart H Deming; Truman K Butler; Vivian Robinson
• Pages: 43-66

43

For many years, the UK law on bribery was to be found in a number of

sources but chiey in the Public Bodies Corrupt Practices Act of 1889 and

the Prevention of Corruption Acts of 1906 and 1916. In 1999 the OECD

Convention on Combating Bribery of Foreign Public Ofcials (‘OECD

Anti-Bribery Convention’) required its signatories, which included the UK,

to establish in their national laws a criminal offence of bribing a foreign

public ofcial. Subsequently, the UK was criticised by the OECD for being

slow to respond and was urged to adopt appropriate legislation as a mat-

ter of priority.

The UK responded by drawing up a Bribery Bill, which was placed before

Parliament and provided the foundation for the UK Bribery Act. The UK

Bribery Act came into force on 1 July 2011. Its provisions are not retro-

spective, which means that it applies to acts of bribery committed after that

date. The UK Bribery Act consolidates the law in a single source, abolishes

the common law offences and repeals former statutory offences. However,

the old law remains in force with regard to offences of bribery committed

wholly or partly prior to 1 July 2011.

A. The General Offences

The provisions of the UK Bribery Act are of general application to bribery

within the public and private sectors.

3

The general offences under the UK

3. This differs from the FCPA whose anti-bribery provisions are directed at FPOs and do

not have a general application.

Chapter 3

UK Bribery Act

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THE FCPA AND UK B RIBERY ACT44

Bribery Act, sections 1, 2 and 3 (‘General Offences’) apply to bribery where

any act or omission forming part of the offence takes place within the UK.

Where bribery takes place outside the UK, the courts of the UK have juris-

diction under sections 1, 2 or 6 if:

•

The acts or omissions would form part of the offence if done or

made in the UK, and

• The person concerned had a ‘close connection’ with the UK, which

will include a foreign citizen ordinarily resident in the UK.

1. Bribing another Person (‘Active Bribery’) – Section 1

This occurs where a nancial or other advantage is offered, promised or

given to individuals or entities with the intention of inducing or rewarding

the improper performance of a relevant function or activity.

•

‘Relevant function or activity’ means any function of a public nature,

or any activity that is connected with a business or performed in

the course of a person’s employment or performed by or on behalf

of a body of persons.

•

‘Improper performance’ may take place where the relevant func-

tion is performed in breach of an expectation that it is performed

in good faith, impartially and in accordance with a position of trust.

•

‘Expectation test’ is what a reasonable person in the UK would

expect in relation to the performance of the type of function or

activity concerned.

2. Being Bribed (‘Passive Bribery’) – Section 2

This occurs where a nancial or other advantage is requested or accepted

in return for the improper performance of a relevant function or activity.4

The same considerations as in section 1 apply as to what is improper

4. The UK Bribery Act differs from the FCPA, which does not cover Passive Bribery.

However, in rare situations, money laundering has served as the basis of a criminal charge by

the US Justice Department for conduct that might otherwise be described as Passive Bribery.

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